The Rule Order in Australia - Case Study Example

Name of institute: Title: Submitted by: Date of submission: Program: Expected date of completion: A contract is a lawfully enforceable accord between two or more parties with common duties. The answer of law for breach of contract is "damages" or economic compensation. In equity, the answer for law can be defined performance of the agreement or an injunction. Both answer for law award the injured party the "benefit of the bargain" or prospect damages, which are larger than sheer dependence on damages, as in promissory estoppels. The law of Australia is composed of the Australian common law (which is founded on the English common law), federal laws passed by the Parliament of Australia, and laws passed by the Parliaments of the Australian states and territories. The most significant law of Australia is the Constitution of Australia, which explains Australia's structure of constitutional monarchy, and shapes the origin for the government of Australia.every form of States and territories of Australia that are self-governing are divided into jurisdictions, and have their own structures of courts and parliaments. The structures of laws in each State are significant on each other, but not binding. Laws approved by the Parliament of Australia are valid to the entire Australia. The following is a chart of the rule order in Australia. The ordered system of law and government currently in force in Australia is in the past reliant for its legal legality on a series of British statutes, particularly including the Commonwealth of Australia Constitution Act 1900. The power of the United Kingdom Parliament to pass those statutes relied on the attainment of the Australian continent as a territorial control of the British Crown. 1. Unconscionability Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 The Amadios, whose son carried on business as a builder, assured the son's indebtedness to the Commercial Bank.  To this conclusion, they executed certain documents the result of which was to give the bank with a mortgage over a building which they owned.  When the son's business became unsuccessful, the bank wanted to enforce the assurance.  In their defence, the Amadios asserted that the assurance was unenforceable because it was unconscionable. It was held (High Court of Australia) (by 3-1 majority) that, in the entire situation, it was unconscionable for the bank to rely on the assurance.  The situation which the court took into account in attainment this conclusion included the fact that: (1)the Amadios spoke and understood little English; (2)they did not seek self-determining advice, nor was the looking for of such advice suggested by the bank; (3)at the time the mortgage was executed, the bank was alert of the son's precarious financial location and knew that the Amadios were not so valued; and (4)the bank did not counsel the Amadios that there was no limit on their liability under the guarantee - the Amadios supposed the legal responsibility was limited to $50,000.  Dawson J delivered a rebellious judgment in which he said that the data did not point to the Amadios having been disadvantaged and that, therefore, the bank was not guilty of either unconscionable conduct or misrepresentation. In the course of his judgment, Mason J noted that: Relief on the ground of unconscionable conduct will be granted when unconscientiously benefit is taken of an innocent party whose will is overborne so that it is not independent and deliberate, just as it will also be approved when such benefit is taken of an innocent party who though not deprived of an independent and voluntary will, is not capable to make a worthwhile judgment as to what is in his best interests (at 462). Remedy for general law unconscionability In cases of established unconscionability, the courts will set aside the agreement or refuse to make an order for specific performance of it.  As will be seen, if the unconscionable conduct constitutes a breach of statutory law, broader remedies (including damages) may be obtainable. Summary of Case The Amadios made definite their son's debt to the Commercial Bank by providing the bank with a mortgage over one of their properties.  When their son's business bent, the bank tried to put into effect the assurance but the Amadios claimed that the assurance was unconscionable and therefore unenforceable.  The court took the view that it was unconscionable for the bank to rely on the assurance on four grounds. First, because the Amadios understood little English; second, the bank hadn't given them hope to seek independent advice; third, the bank was familiar with that the son's business was uncertain and they also knew that the Amadios were not aware of this fact; fourth, the bank did not inform the Amadios that there was no boundary on their liability under the guarantee.  The principle established in this case was that relief on the ground of unconscionable conduct will be tolerable when unfair advantage is taken of a blameless party.  In this example, the courts will set aside the contract or say no to order specific performance of it. Loss of enjoyment Normally speaking, contract damages do not cover intangible types of loss. They are roughly always worried only with financial loss. Unlike damages for negligence, where it is likely to claim for non-pecuniary loss (as well as what is peculiarly called nervous shock), contract damages do not normally enlarge to these types of harm. There are, nevertheless, some exceptions. In addition, there is an extraordinary type of agreement under which damages for intangible losses can be declared. That type is a contract to give pleasure. The typical case is a agreement with a travel agency or other party concerned in the holiday business where the holiday goes badly wrong. In such cases the customer can assert damages for loss of pleasure. An example is Baltic Shipping Co v Dillon HPH 888 Availability of damages for mental distress A festival cruise came to a catastrophic end when the ship sank. The plaintiff, Mrs Dillon, wanted to return of the fare to the degree that she had not established value for money and damages under a number of heads, including damages for loss of pleasure. On the query of return of part of the fare, she had had some advantage in exchange for the fare and so there was not a whole failure of consideration in the intelligence used in Fibrosa Spolka and in McDonald v Dennys Lascelles in which the question is; Could she get back some of the fare as damages (rather than under the law of restitution)? As to the query of damages for loss of enjoyment, etc, the discussion by McHugh J on pp 894-900 is pretty comprehensive. He made the point (pp 894-895) that the general rule, which does not allow damages in breach of contract actions for distress or disappointment, is not a rational rule and he put forward some convincing arguments against it. He then went on to consider established exceptions to the rule. These are discussed on pp 896-898. One example is where a solicitor has failed to do his or her job properly which has caused distress to the client. In one case, a solicitor failed to get a restraining order in a domestic violence case. The English courts seem to have confined the rule to those sorts of contracts where the contract itself is to provide relief from distress or to provide enjoyment, that is, it is the central obligation of the contract which has been broken. It is not enough that distress, anxiety or disappointments are an incidental consequence of the breach of contract. McHugh said that maybe it is time for the law to expand in this area but, in the end, he said that this case is not the proper time to do it. All judges accomplished that the fare, or part of it, could not be claimed back by Mrs Dillon but that she was entitled to damages of $5000 for disappointment and distress Walton Stores (Interstate) Ltd v Maher (1988) 76 ALR 513 Looking at a case like this, I can easily relate it in this form Facts W discussed for some months with M for the contribution of a lease over property owned by M. It was understood that M would tear down an accessible building and put up a new one for W to live in. W required the plans etc be set to go with its needs.  Contract was arrived at on terms and rent. Solicitor for W send sketch lease to solicitors for M on 21 October and some alterations were talked about and received by W. A revised lease with amendments was sent by M to W.  In November M informed W that demolition work had commenced so that it was important to conclude the lease quickly before Christmas closing. Soon after in November W started to have a number of doubts and (having been well-versed it was not bound by the agreement) directed solicitors to ‘go slow’.  Near the beginning January M commenced building, but later in the month W informed M it did not wish to proceed; building work was 40% complete.  M hunted to put into effect the contract. History M achieved something at first instance and on appeal.  W appealed to the HC. Held (Mason CJ and Wilson J) (1) M did not consider that contracts had been swaped when they get on with pulling down (2) nevertheless, were freed to presume the exchange was a mere procedure (3) Promissory estoppel expands to representations or guarantee as to future conduct (4) No cause in principle why cannot apply to preclude departure from symbol that representor will or will not put into effect a non contractual right (5) For a non-contractual guarantee to be enforceable directly (a) Promisor should make promise (b) Promisor must generate to support an supposition that contract will come into being/ promise will be carry out (c)   Promisee should rely on this to loss (d) Ought to be unconscionable, having thought to the promisor’s conduct, for the promisor to be liberate to ignore it. Equity grants relief because it would be unconscionable conduct on the promisor’s part to ignore the assumption. As a result, promissory estoppel in Australia may be worn as both a ‘sword and a shield’: The reply was no – their Honours measured the ‘element of urgency’ nearby the negotiation and the belief of the respondents that conclusion was sheer formality; in situation where W knew that M was t staging costly work.  In those situation, W ‘was under an obligation’ to converse with M within a sensible time after getting the executed lease – at least to warn M that it may not proceedHere the mere exercise of legal right not to exchange contracts not unconscionable - but there were two additional elements: (a) element of urgency and (b) M executed and forwarded on 11/11 and assumed that execution by W was formality W was in obligation in the situation to converse within reasonable time and certainty when it heard of demolition. Had to decide whether to warn or go on.  functioning comprised, in the situation, clear support or enticement to M to continue to Act on basis of assumption made. Was unconscionable conduct to adapt course they did Brennan J Fair estoppel happen where: (a) P took a particular legal relationship live between the parties (or predictable that it would); (b) D has persuaded that assumption in P; (c) P acts (or desist from acting) in dependence on the assumption; (d) D knew or planned him to so act; (e) P’s action/inaction will case him/her loss if the supposition is not fulfilled (f) D has been unsuccessful to act to avoid that detriment (eg, by fulfilling expectation) His Honour also made clear that the remedy for promissory estoppel should go no further than what is essential to prevent the unconscionable conduct – in this respect, the article of the equity is not to compel D to fulfil the anticipation/ assumption, but to keep away from the detriment that P will undergo if the expectation is not fulfilled. Therefore, I have been able to deal with a case in the form of the above explanation. The problems I have encountered is mostly determining the conclusion and relating it in terms of law. The challenges that I have encountered in these cases is to collect the required information. To look at the critical conclusion reached and the ways in which these cases reflect a clear show of contract laws. Company I would call my company; Kizuri Company is the title for my company as a result of searching through Australian Securities & Investments Commission. This online search website helps people who want to establish companies, business, and trusts and so on to be able to know if the business name exists. In this case I choose Kizuri a name I picked from a friend in Kenya to mean a good one. Under Australian law, a proprietary limited company, abbreviated as 'Pty Ltd' is a trade structure that has at least one shareholder with a limited number of shares. Its opposite number includes the public Limited company (Ltd.) and the Unlimited Proprietary Company (Pty.) with a share capital. As showed in the main Australian Corporations Act 2001 a proprietary company has to either be: Proprietary Limited (Pty Ltd) company, limited by shares, where shareholders are given more safety when it comes to the level of liability that they face for company debts; or Unlimited Proprietary (Pty) company with a share capital, similar to its limited company (Ltd., or Pty. Ltd.) counterpart, but where the members or shareholders legal responsibility is not limited. The proprietary limited or unlimited company has to have at least one shareholder and has to have no more than 50 non-employee shareholders and at least one director who should live in Australia. A secretary can be appointed (Sect. 204A), that should be at least 18 years of age. One person may at the same time hold the place of company director and secretary. A proprietary company is classified as small simply if it meets at least two of the following criteria: It has possessions of less than $12.5 million at the end of a financial year. It has less than 50 employees at the end of a financial year. It has gross working revenue of less than $25 million for the financial year. Most big proprietary companies have to lodge audited accounts. Small proprietary companies only have to plan audited financial statements if prepared to do so by the Australian Securities and Investments Commission (ASIC) or members holding five percent of voting shares and, in some cases, if restricted by a foreign company. The Corporations Act gives a list of rules that can run my company. The duties of office holders are to carry out the mandate of the organization within the stipulated laws. Overview of Australian contract law Case of Ms jones v FAL Formation Agreement Consideration Intention Capacity Formalities  There are six necessary basics essential for lawfully binding contract arrangement: (1) an agreement (offer and acceptance); (2) consideration (usually, the providence of money, possessions or services nevertheless everything will suffice as thought be it money or an agreement to undertake, or not undertake a certain act); (3) ability to enter legal relations. E.g. Of sound mind and legal age (4) aim by the parties to enter into legal relations (private non-commercial contract between family members may not essentially represent an agreement as aim to generate legal relations is frequently not present) and (5) Formalities - In most jurisdictions agreements do not require to be signified in writing nevertheless exceptions apply. (6) Certainty. The base of the legal relations called agreement is the accord of the parties. In order for a contract to be an agreement (or a difference to an accessible contract) it has to be sustained by consideration. The contract has to also be adequately sure and whole to be enforced in the courts and the parties have to have intended their contract to be an agreement. The lack of any of these fundamentals will mean either that there is in law no contract or that the contract is not enforceable. Agreement The existence of a contract linking the parties is typically investigated through the rules of offer and acceptance. This might be showed as a clear sign ("offer") by one party (the "offeror") of a readiness to be bound on certain terms accompanied by a message by the other party (the "offeree") to the offeror of an unprofessional agreement to that offer ("receipt"). An offer shows an intention by the offeror to be chained under contract without additional discussion or negotiation, on receipt of the terms set out. It's notable from an "invitation to treat", which is an appeal to others to make offers to connect in discussions with an agreement in mind. An offer may be made to become accountable to anyone who, before it is reserved, acknowledges the offer. It may be limited to certain classes of people; or on the other hand be made to anyone who, before it is withdrawn, believes the offer, including unascertained persons, or to the public at large. Nevertheless, an offer is unproductive until it has been communicated, either by the offeror or a third person performing with the offeror's influence. An approval of the offer consequential on a binding agreement must take place with facts of the offer and an intention to agree to the offer. Though approval need not be articulate and may be showed from conduct, it must match with the bid; be unequivocal; and in common, be communicated to the offeror. Where a supposed receipt suggests one or more extra or diverse terms it is unproductive as an approval, unless the variation is exclusively in support of the offeror. An alleged acceptance will also be unsuccessful if prepared at a time when the offer has failed by virtue of time; if it is made subject to a contingency and that contingency stops to exist; if the offeror expires and the offeree has become aware of of this fact; by the revocation of the offeror or the refusal by the offeree. It must be noted, nevertheless, that the rules of offer and acceptance are just "an aid to analysis", and may from time to time show uncertain or false. An agreement can be made without a particular offer and acceptance, provided the parties have showed their common assent. The "acid test" in a case where offer and acceptance cannot be recognized, according to Justice Cooke in Meates v Attorney-General, "is whether, analyzed entirely and neutrally from the point of view of sensible persons on both sides, the transactions demonstrate a finished bargain." To some degree the case of Ms jones v FAL can be seen as a hard case. Nevertheless, there is an agreement here even if not binding in paper. There is a party here also who stands to answer for the claimant. Consideration The second element necessary for contract formation is consideration. A promise will be enforceable at common law only if it is supported by consideration or made under seal. Consideration can be anything from money to a promise to undertake or not undertake a particular act, even a mere peppercorn could suffice. Therefore FAL had a case to answer on this consideration "Consideration" in this context means that a promise is given in return for a promise received. The usage of the word derives from expressions such as: "I will give you ten pounds in consideration of the apples you are delivering to me." Capacity Contractual ability refers to the skill of a party to enter into a lawfully binding agreement. Minors, drunks and the mentally impaired may not have sufficient capacity though the ordinary sensibly person is supposed by default to have contractual ability. Intention The third part is that the parties must show an aim to generate legal relations. The intention obligation has often been drawn on the foundation that parties to commercial arrangements are supposed to mean legal penalty, while parties to social or domestic contracts are supposed not to mean legal penalty. Such assumption determines who accepts the onus of proof. The load of proof is frequently linked with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the need of proof at all times lies with the person who lays charges."This is a declaration of a description of the assumption of innocence that underpins the appraisal of proof in some legal systems, and is not a universal declaration of when one takes on the load of proof. The burden of proof lean to lie with any person who is in opposition against received wisdom, but does not at all times, as from time to time the penalty of accepting a statement or the ease of gathering evidence in its cover might change the burden of proof its proponents shoulder. The load may also be allocated institutionally. He who does not bear the burden of proof bears the benefit of assumption, denoting he requires no proof to hold his claim. Satisfying the load of proof efficiently imprisons the benefit of assumption, passing the burden of proof off to another party, although, the incidence of burden of proof is affected by common law, statute and procedure. A "lawful burden" or a "burden of persuasion" is a duty that remains on a sole party for the duration of the claim. Once the load has been completely freed to the approval of the truth of fact, the party bearing the load will thrive in its claim. It is not to be puzzled with evidential burden, which is a duty that transfers between parties over the course of the hearing or trial. It is not a load of proof, but the burden to adduce adequate evidence to correctly raise an issue at court. Ms jones had a an agreement and thus she had a case to present. . Common damages are usually awarded only in claims passed by individuals, when they have undergone individual harm. Al damages recompense the claimant for the proven monetary losses undergone by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of exceptional items, extra domestic costs, and so on. They are observed in both individual and commercial actions. This shows that Joseph has entitlement for the losses he has suffered in the loss of his job for this case in which he wants to be granted help and solve his financial problems. Special damages may comprise of direct losses (such as sums the claimant had to use to attempt to lessen problems) and as a result or economic losses resulting from lost profits in a business. Special damages essentially include the compensatory and disciplinary damages for the tort dedicated in lieu of the injury or damage to the plaintiff. Damages in tort are granted usually to place the claimant in the position in which he would have been had the tort not taken place. Compensations for breach of contract are usually granted to place the claimant in the situation in which he would have been had the contract not been breached. This can at times result in a diverse measure of damages. In situations where it is likely to frame a claim in either contract or tort, it is essential to be conscious of what gives the best result. There is an argument that Joseph may also not get enough legal help as a result of that there was no breach of contract as there was no contract in the first place. This can be seen in Breach of tort duty - (ex delicto) in which case damages in tort are generally awarded to place the claimant in the position that would have been taken had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages. Standard of proof The "standard of proof" is the height of proof necessary in a legal action to free the burden of proof, which is to persuade the court that a given proposition is true. The degree of proof necessary depends on the circumstances of the proposition. Naturally, most countries have two levels of proof or the balance of probabilities-- the civil standard of proof, however, can also be used in criminal trials. Beyond a reasonable doubt: the peak level of proof, used mostly in criminal trials. Preponderance of evidence: the lowest level of proof, used mostly in civil trials. Formalities In the majority of jurisdictions agreements do not require to be symbolized in writing but exceptions apply. Oral agreement is as enforceable as written agreements. Though, there are a number of exceptions that have been shaped by statute. Instances include marine insurance which to be binding must be recognized in written form. Also customer credit must be recognized in written form with a duplicate granted to the customer. These necessities have been put in place by statute so as to guard consumers and/or avoid such acts as scams. Negligence and tort law Tort law in Australia is the body of precedents and, to a lesser extent, legislation, which together define the operation of tort law in Australia. A tort is a civil wrong, other than a breach of contract. Tort law is a method in which the law can get in the way with relationships between private individuals to approve a form of conduct or wrong. A large number of torts survive, and they usually draw from their legal status from the common law. Since a court can describe an existing tort or even know new ones through the common law, tort law is at times regarded as boundless and flexible to modern situations. Usually, torts are not clear within definite statute or legislation and have developed through judge-made law, or common law. Yet, each state has also shaped statutes to supersede the common law, particularly in the areas of laxity, personal injuries and defamation. Australian tort law is deeply inclined by the common law in other countries, mainly the United Kingdom, by virtue of Australia's colonial heritage. Nevertheless, this has since been customized by statutes such as the various states’ Civil Liabilities Acts In addition; there is also a tough and current trend for the Australian High Court to cite with consent many values from the United States. Nevertheless, as the High Court noted: Breach of contract duty - (ex contractu) On a breach of contract by a defendant, a court usually awards the amount that would re-establish the hurt party to the economic position they predicted from performance of the assurance or promises (known as an "expectation measure" or "benefit-of-the-bargain" gauge of damages). Parties may agree for liquidated damages to be rewarded upon a breach of the agreement by one of the parties. Under common law, a liquidated damages clause will not be forced if the reason of the term is exclusively to discipline a breach (in this case it is termed penal damages). The clause will be enforceable if it engages a genuine effort to calculate a loss in advance and is a good faith approximation of economic loss. Courts have ruled as extreme and annul damages which the parties contracted as liquidated, but which the court nevertheless found to be severe. In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained (see below general damages for more details). In non-personal injury claims, for instance, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss. The loss must be reasonably foreseeable and not too remote. Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss. In the case of Debbie, she suffered as a result of the accident. Both the club and the driver neglected their own issues that they were in ‘bad condition according to law’ Note that according to Litigation; Tort law engages much of the time of the various Magistrates', Local, District and County Courts and a considerable proportion of the time of the Supreme Courts of each of the states and territories. In addition, there are many specialist tribunals dealing with workers' compensation and other cases. Road accident sufferers are far more probable to make claims and be given tort compensation than any other group. This prevalence is due not so much to the law of torts, but the reality that liability insurance is unavoidable by statute in all Australian states. This clearly shows that Debbie is more likely to be awarded a legal composition according to liability insurance in law Legal costs In addition to damages, the winning party is permitted to be granted his sensible legal costs that he spent during the case. The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of...other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning. References Australia Act 1986. Acts Interpretation Act 1919 (South Australia), s 48. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. Brodie, Scott (1999). Our Constitution. Franklin Watts Australia. ISBN 0-9585649-0-6. B. Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, Sydney, 1995) at 157. Brisbane Authority v Taylor (1996) 70 ALJR 866 at 871-2 Cook v Cook (1986) 162 CLR 376 at 390 (Mason, Wilson, Deane and Dawson JJ) Case 15 - Anonymous (1722) 2 Peer William's Reports 75; 24 ER 646. Limitation Act 1969 (NSW), s 14(1)(b); Limitation of Actions Act 1974 (Qld), s 10(1)(a); Limitation of Actions Act 1936 (SA), s 35; Limitation Act 1974 (Tas), s 4(1)(a); Limitation of Actions Act 1958 (Vic), s 5(1)(a); Limitation Act 1935 (WA), s 38(1)(c)(vi); and Limitation Act 1985 (ACT), s 11(1). Limitation Act 1969 (NSW), s 18A; Limitation of Actions Act 1974 (Qld), s 11; Limitation of Actions Act 1936 (SA), s 36; and Limitation Act 1974 (Tas), s 5(1). Civil Law Wrongs Act 2002 (ACT); Civil Liability Act 2002 (NSW); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas); Civil Liability Act 2003 (Qld); Personal Injuries (Liability and Damages) Act 2003 (NT); and by amendments to the Wrongs Act 1958 (Vic) and the Wrongs Act 1936 (SA) Trade Practices Amendment (Personal Injury and Death) Act (No. 2) 2004 (Cth) Patrick Parkinson, Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001) at 6. Interpretation Act 1918 (Western Australia), s 43. R. Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995) at 7, 52. Kercher makes reference to the case of Henry Kable, who successfully sued the captain of the ship Alexander. New South Wales Act 1823; Australian Courts Act 1828 Great Reform Act 1832; Australian Constitutions Act (No 1) 1842; Australian Constitutions Act (No 2) (Imp). Jeffrey W. Barnes, "Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law" Part One (1994) 22 Federal Law Review 116; Part Two, (1995) 23 Federal Law Review 77. Parkinson, Patrick (2002). Tradition and Change in Australian Law. Sydney: LBC Information Services. ISBN 0-455-21292-9.  Blackshield, Tony; Williams (2006). Australian Constitutional Law and Theory. Sydney: Federation Press. ISBN 1-86287-585-5.  Read More